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- VERSUS -
SULEMANA & ORS. — ONLY 1st
DEFENDANT IS APPEALING.
__________________________________________________________________
JUDGMENT
QUAYE, J.A.
This is an appeal from the
ruling of the Circuit Court
Accra, made on 18th July, 2001
by which the said court refused
to set aside a default judgment
in this matter against the 1st
defendant [appellant herein] on
2nd November, 1999.
In order to make for a better
understanding of this appeal, I
consider it necessary to recount
the facts in brief. By their
writ of summons filed on 1st
April 1999 the plaintiffs [who
are presumably man and wife]
sued the defendants, numbering
seven, with the appellant herein
listed as the first defendant.
An endorsement of service of the
writ together with the statement
of claim was made on the back
page of the writ on 6th April,
1999 to show that of the seven
defendants only two, that is to
say, the 3rd defendant Kofi Siaw
and the 6th defendant Kpakpo
Somuah were served on 1st April
1999, the very date on which the
writ and the statement of claim
were filed. The action was for
the recovery of possession of
Land, perpetual unjunction and
general damages for trespass. On
14th April 1999 the Plaintiff
filed a motion for an order for
substituted service to be
effected on the 1st and 7th
defendants. The plaintiffs
averred in the supporting
affidavit, inter alia, that all
the Defendants had been served
with the writ of summons and the
statement of claim except the
1st and 7th defendant. The trial
Circuit Court granted the
application on 20th April, 1999.
The order which was subsequently
drawn up was erroneously dated
21st March, 1999. It was to
remain in force for twenty-one
days. By the success of the said
application an order for
substituted service, it was
understood and indeed expected
that the 1st defendant was to be
deemed to have been served by
[a] the delivery of the said
processes to one Mr. Yartey was
alleged to be living nearest to
the land in dispute and [b] by
posting copies of the said
processes on the wall of the
structure the 1st defendant was
erecting on the land in dispute
for at least twenty one days. A
subsequent search which the
plaintiff conducted in the
Registry of the Circuit Court,
Accra filed on 21st May 1999 but
responded to on 9th June, 1999
disclosed, inter alia, that the
1st defendant was served with
the writ of summons and
statement of claim on 21st
April, 1999. Even though I have
decided to limit this judgment
as much as possible to the 1st
defendant/appellant, I find need
to digress briefly to mention
that the search under
consideration further indicated
that the 3rd defendant had
entered an appearance, since
14th April, 1999. Neither the
memorandum and notice of
appearance, nor the statement of
defence allegedly filed by 3rd
defendant, as borne out by the
proceedings on 21st May, 2000
was included in the record
before us. There is however a
reply to the 3rd Defendant's
statement of defence and counter
claim.
The Reply was filed on 3rd
April, 2000, the very date on
which a summons for directions
was filed.
The plaintiff, apparently
fortified by the result of the
search they conducted on 21st
May, 1999 filed a motion
ex-parte for default judgment
under Order 13 rule 8 of the
High Court [Civil Procedure]
Rules [1954] [LN 140A] against
the defaulting defendants. On
2nd Novemeber, 1999 the 1st
plaintiff Mr Jonas Paintsil gave
sworn evidence in open court
after which judgment was entered
in favour of the plaintiffs
granting all the reliefs
indorsed on the writ of summons
and costs of ¢800,000.00 was
awarded against each of the
defendants but excluding the
3rd, in favour of the
plaintiffs. It appears that
counsel for the plaintiff's
problems with service of court
processes on the defendants was
revisited yet again when
attempts were made to serve the
defendants with notice of entry
of judgment. Accordingly he
filed another motion for an
order for substituted service on
29th June 2000. It was granted
by the court, as prayed, on 6th
July, 2000 and was made valid
for fourteen days. A search
conducted on behalf of the 1st
defendant/appellant on 7th
August, 2000 showed that the
writ of summons, the statement
of claim and the notice of entry
of judgment were served on the
1st defendant/appellant, and a
second search by the 1st
defendant/appellant on 9th
August 2000 indicated the mode
of the alleged service to be by
"posting on the wall structure
of 1st defendant". There was yet
another search, this time, at
the instance of the plaintiff,
on 10th August, 2000, and this
search gave the date of service
to be 15th July, 2000. Upon the
strength of this information,
the plaintiffs sought leave of
the trial court for a writ of
possession. Leave was
accordingly granted on 11th
September, 2000 and the
plaintiffs acted swiftly by,
inter alia, demolishing the 1st
defendant’s building supposedly
on the disputed land. When the
1st defendant/appellant woke up
to what had befallen his
building, he entered an
appearance to the action on 3rd
January, 2001 and on the same
day applied to set aside the
entry of the default judgment.
The 1st defendant/appellant’s
motion was based upon his
alleged absolute ignorance about
the action filed by the
plaintiffs’ and all the
processes and proceedings taken
therein leading to the
demolition of his house. After
the plaintiffs had duly filed
their affidavit in opposition, a
date was fixed to hear the
motion. Upon the record, counsel
for the appellant made his
submissions viva voce to the
Court on 16th March, 2001. At
the end thereof, the matter was
adjourned until 6th April, 2001
for counsel for the plaintiffs
to reply. On 4th April, 2001
counsel for the plaintiffs filed
what they titled, supplementary
affidavit of the plaintiffs in
reply. This step by the
plaintiffs was contrary to the
procedure then being followed by
the Court. The record does not
indicate that counsel for the
plaintiffs sought leave to
dispense with an oral replay to
the submissions by his opposing
counsel for the appellant,
neither is there any record that
leave was granted him to file
his reply. To say the least the
step taken by plaintiffs’
counsel without notice or leave
of the court, was bound to cause
no little surprise to his
opponent. Regrettably the court
seemed obvious to the arbitrary
decision of plaintiffs’ counsel,
and accepted it. This step would
deny appellant’s counsel any
comment he might have on
plaintiffs’ counsel’s reply. On
18th July, 2001, the court
refused to set aside the default
judgment that it had entered
against the appellant and
awarded costs of ¢150,000.00
against the appellant. This
ruling which is brief, is hereby
reproduced.
"RULING: I am unable to accede
to the prayer of the 1st
defendant/applicant. Accordingly
the application filed on 3rd
January, 2001 praying to set
aside the default Judgment is
refused with costs of
¢150,000.00"
It was against this refusal that
the herein appeal was filed. I
will now proceed to the grounds
of the appeal and consider the
submissions of both counsel.
The first ground of appeal as
set down and argued is:—
"(1) The learned trial judge did
not exercise his discretion
judicially in refusing the
application to set aside the
default judgment."
Arguing this ground of appeal
Counsel for the appellant
referred to the right offered a
plaintiff to apply for the entry
of default judgment upon certain
conditions, as provided under
Order 13 rule 8 of LN 140A.
Having stated the right offered,
he also called attention to
Order 13 rule II which might be
called in aid by a defendant
against whom default judgment
has been entered, to apply to
set it aside. Order 13 rule 8
provides that:—
"8. In case no appearance shall
be entered in an action for the
recovery of land, within the
time limited by the writ for
appearance, or if an appearance
be entered but the defence be
limited to part only, the
plaintiff shall be at liberty to
enter judgment that the person
whose title is asserted in the
writ shall recover possession of
the land…"
Ruling 11 thereof says:—
"11. Where judgment is entered
pursuant to any of the preceding
rules of this Order, it shall be
lawful for the Court or a Judge
to set aside or vary such
judgment upon such terms as may
be just."
Commenting on the above, counsel
for the appellant urged upon
this Court that the discretion
that Order 13 rule 11 confers
upon the Judges is a judicial
discretion which ought to
exercised judicially. The trial
Judge however failed to act
judicially. Counsel contended
that in the exercise of judicial
discretion of this nature, some
legal considerations have been
said to guide the Court., among
which is the requirement that
the court ought to state reasons
justifying its decision or
ruling. He submitted that the
trial Judge did not make
recourse to any of the known
judicial guides in considering
the application to set aside
default judgment. By failing to
assign reasons for the ruling
the trial Judge must have either
taken irrelevant considerations
into account or failed to take
relevant considerations into
account when he purported to
apply Order 13 rule 11, to the
facts of the application to set
aside default judgment. Such
failure, it was submitted
constitutes an error of law, a
jurisdictional error which can
be rectified on appeal. Counsel
cited for support, the decision
in REPUBLIC vrs. EASTERN
REGIONAL HOUSE OF CHIEFS:
Ex-parte: BIRIKORAMAA, [1987-88]
1 GLR.40.
In reaction to the above
submission of Counsel for the
appellant, Counsel for the
plaintiffs/respondents expressed
the view that the application to
set aside the default judgment
was woefully belated. He called
attention that judgment was
entered on 2nd November, 1999
for default of appearance after
the appellant had been duly
served with the writ of summons
and the statement of claim on
21st April 1999. In spite of
this service upon him, the
appellant failed to enter
appearance. This was followed
with the service upon the
appellant of the notice of entry
of judgment on 15th July, 2002.
In addition, other court
processes were served upon the
appellant by substituted service
because he was evading personal
service. Eventually he entered
appearance on 3rd January, 2001,
that is, the space of one year
and eight months after the
service of the writ of summons
and statement of claim. Counsel
for the respondent furthermore,
took strong exception that
appellant did not obtain the
leave of the Court before filing
his entry of appearance out of
time, as required by Order 64 of
LN 140A. The appellant was also
faulted by counsel for the
respondents for failing to
exhibit any title deed in
respect of the disputed land in
his favour. The last issue
raised on behalf of the
respondents on this ground of
appeal was that the respondents
had already gone into execution,
demolished the buildings which
had been illegally built
thereon, and have taken a step
further by divesting themselves
of their rights to the disputed
property in favour of real
estate developers, who have
since developed the land. He
referred to BLUNT vrs. BLUNT
[1943] AC. 517 at 518, which
case was applied in the Ghanaian
case of CRENTSIL vrs. CRENTSIL.
(1962) 2 GLR. 171 at 175. The
holding in the BLUNT case
(supra) was to the effect that
an appeal against the exercise
of the court’s discretion can
only succeed where it is shown
that the discretion was
exercised on wrong or inadequate
materials if it can be shown
that the Court acted under a
misapprehension of fact, in that
it either gave weight to
irrelevant or unapproved matters
or omitted to take relevant
matter into account. At least it
appears from the submissions
that both Counsel are agreed as
to the legal soundness of the
decision in the BLUNT case
(supra). However, counsel sought
to rely upon it upon different
interpretation. I am therefore
to find out whether the court
exercised its discretion
judicially. The term judicial
discretion has been said to be
broad and elastic, and equated
with sound judgment of court to
be exercised according to rules
of law. See PEOPLE VRS. RUSSEL
70. Cat Rptr.210, 215, 448 p.2d
794. And in STATE vrs. GRANT 10
Wash. App. 468, 519 P2d 261, 265
it was described to be "a sound
judgment which is not exercised
arbitrarily, but with regard to
what is right and equitable in
circumstances and law, and which
is directed by the reasoning
consistence of the trial judge
to a just result." We should now
consider the facts and
circumstances that led to the
entry of the default judgment.
The judgment was largely
determined by the incidence of
non service of the writ of
summons and the statement of
claim, on the one side, and the
failure of the appellant to
respond to the action by
entering appearance, and may be,
filing his defence. The Court
gave judgment upon the semblance
of proper legal service of the
processes filed in the Court on
the appellant. It would seem
therefore that provided the
appellant was duly served, and
yet failed to respond, then he
either did not have any or a
good defence or that he was just
not interested. However, a close
examination of the facts would
reveal that the trial Court did
not consider carefully the
processes that were urged before
it leading to the entry of
Judgment. It would be seen that
on two occasions the court made
an order for substituted
service. The first of the two
orders was made on 20th April,
1999. By the said order which
was to remain extant for twenty
one days, the writ of summons
and the statement of claim were
to be delivered to one Mr.
Yartey “lives nearest to the
disputed land “and also by
posting copies on the wall of
the structure which the
appellant was erecting on the
land. The search conducted on
9th August, 2000 indicated that
the appellant was served with
the processes in question on
21st April, 1999 by posting them
on the wall of the appellant’s
structure. There was no mention
of Mr. Yartey. It is not known
whether copies of the processes
were delivered to him as the
court had ordered. The
application for default judgment
did not show particulars of
service. It is a matter of grave
conjecture whether Mr. Yartey
knew or KNOWS the appellant and
whether indeed he passed the
processes on to the appellant.
The simple way this hazy cloud
could have been removed from the
eyes of the Court was by having
an affidavit sworn to by Mr.
Yartey showing positively that
he discharged the trust reposed
on him by the Court by actually
bringing the processes to the
knowledge of the appellant.
Where there was no such
evidence, then a doubt can be
said to have arisen as to
whether indeed the substituted
service actually served its
purpose.
The appellant upon oath denied
any knowledge of the pendency of
the action as well as all the
proceedings thereto: The order
for substituted service made on
20th April, 1999 was to operate
for twenty-one days. It was
drawn up on 21st April, 1999
even though the Registrar
mistakenly put down a date one
whole month earlier re: 21st
March, 1999. Considering that
the writ was filed on 1st April,
1999, the error is established.
It might seem however that the
bailiff who proved service might
have acted upon the incorrect
premise that the order was made
on the date appearing where the
Registrar had signed: It is
respectfully, submitted that
twenty-one days from the 21st
April, 1999 even including dies
non, would last until 11th May,
1999 before it could be validly
presumed that the appellant had
been served. The facts of this
case do not support the
representation made to the trial
court that the appellant was
served by substitution on 21st
April, 1999. And considering
that in this case there was no
personal service, it appears the
Court was completely deceived
into believing that the
appellant was served.
Similarly, the whole
misconception attending to the
service of the writ and
statement of claim was re
visited with respect to the
service of the entry of judgment
which led to the issuance of the
writ of possession. The
substituted service at that
stage was granted on 6th July,
2000. It was to remain in force
for fourteen days that is up
until 20th July, 2000 (including
dies non). The search conducted
by the respondents on 10th
August, 2000 however indicated
that the appellant was served
with the entry of judgment on
15th July, 2000. With greatest
respect, the answer given in the
search was offensive to the
order made by the Court. I would
add that the Court could not
legally go contrary to its own
orders and it was legally bound
to reject the result of the
search and any affidavit based
on the erroneous information,
and not to rely upon it to
inform any decision it made. I
have come to this conclusion
because of the clear distinction
between personal service and
substituted service. Order 9
rule 2 of LN 140A makes
provision for both methods of
service. Order 10 thereof is
limited to substituted service.
The distinction is that personal
service is effected by handing
the process over to the party to
be served or some one who is in
a way related to him. After such
personal contact, the bailiff
would next prove service
indicating the time, place and
person on whom the process was
served. Time begins to be
counted from then. In instances
of substituted service, there is
invariable no personal contact.
The order is made to run for a
length of time. Service would
not be deemed to have been
effected until the time fixed
had elapsed. It is only then
that party to be served can be
presumed or deemed to have been
served. It is wrong therefore to
say that the appellant herein
was served with any of those
processes when the time given
had not elapsed. To this extent
therefore I can conclusively say
that the processes, i.e the writ
of summons, the statement of
claim and the notice of entry of
judgment were not served on the
appellant, it would be wrong to
deny him the remedy of setting
aside the default judgment made
as it was dictated upon
misleading premise. It would not
be too for fetched to say that
the decision of the trial
Circuit Court was likely to be
different if the above lapses in
the matter had been drawn to its
attention and considered in
arriningsic at the decision not
to set aside the default
judgment. Under the
circumstances, it would not
follow the evidence available to
fault the appellant for waiting
too long. Besides, the concerns
raised by counsel for the
respondents with regard to delay
and failure to apply for
extension of time or leave to
file entry of appearance, seem
not very attractive. The issues
were addressed by the Court of
Appeal in QUARMYNE vrs. AFEYESI
& ORS. (1984-86) 2 GLR. 430. I
intend to reproduce the holding.
“the words of Order 13 rule 11
of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
governing applications to set
aside default judgments were
clear and do not require any
further interpretation except to
say that the rule gave wide
discretionary powers to the
court to set aside judgments in
appropriate cases. In exercising
that discretion, it was
unnecessary for the court to
consider whether or not the
applicant before applying to set
aside the default judgment had
obtained leave to enter late
appearance. The trial judge had
therefore erred in refusing the
application on the grounds that
prior to bringing the
application, the applicant had
not obtained leave to enter late
appearance. And since the trial
judge had found that the
judgment had been regularly
obtained-there being sufficient
evidence in support thereof, the
defendant was only required to
produce an affidavit of merit
before the discretion could be
exercised in his favour, since
the defendant’s affidavit had
disclosed facts showing defence
on the merits the trial judge
should have adopted a more
liberal approach in the
circumstances of the case and
acceded to the defendant’s
request so as to allow the case
to be fought on the merits."
I agree entirely with the above
holding, and I subscribe to it.
In the herein case the second
ground of appeal is cognisable
in terms of the decision in the
QUARMYANE vrs AFENESI case
(supra) The defence he disclosed
in his affidavit in support of
the application to set aside the
default judgment rested on the
non service on him of the
relevant processes in the
matter. The response of the
Counsel for the respondents has
been adequately considered
above, and I am satisfied that
they do not see a matter of
fact, really address the issues
arising. I believe further that
the third ground of appeal, that
the ruling is against the weight
of evidence before the trial
court has also been dealt with.
It is correct exposition of law
to say that where a trial judge
misapprehended the evidence in
the exercise of his discretion
that would be sufficient
justification for interference
by an appellate court. See
TRABOULSI & Co., vrs. PATTERSON
ZOCHONIS & CO. LTD [1973] 1 GLR.
133. In the instant appeal I am
satisfied that the trial judge
was led into the unfortunate
position where he was almost
powerless to clearly appreciate
the case on its proper merits,
but for that fact, he was likely
to have come to a different
conclusion with regard to the
entry of default judgment as
well as the application to set
that judgment aside. The trial
judge’s failure to state any
reasons for arriving at his
decision not to set aside the
judgment that had been entered
against the appellant in default
of appearances is most
unfortunate as it in effect
denies the appellate court to
fully appreciate the factors
that informed the decision. That
failure notwithstanding, at is
my view that the lapses referred
to above in this judgment ought
to weigh heavily in the mind of
any judge and give direction for
the exercise if his discretion.
I cannot end without turning to
the allegation made upon oath by
the respondents that they had
sold the subject matter to real
estate developers who had
subsequently developed the whole
land. If this was really the
situation then it is most
unfortunate. At the time that
the appellant filed his
application to set aside the
default judgment, the land had
not been sold by the
respondents. Neither had the
land been sold by them at the
time the motion was argued. If
the respondents had indeed sold
the property, that fact would
have reflected in the two
affidavits field by them on 17th
January and 4th April, 2001
respectively. The position then
is that if they have divested
themselves of the land, then
that was most probably done
during the pendency of this
appeal. In any case the
respondents had actual notice of
the appellants claim to title to
the land and the respondents
could not be permitted at law to
conduct their affairs in a way
calculated to defeat justice.
Upon the above reasoning based
upon the facts and the law, I
have no misgiving whatsoever to
uphold the appeal.
G.M. QUAYE
JUSTICE OF APPEAL
OMARI-SASU, J.A.
I agree
K. OMARI-SASU
JUSTICE OF APPEAL
TWENEBOA KODUA, J.A.
I also agree
K. TWENEBOA-KODUA
JUSTICE OF APPEAL |
